Dicta and the Rule of Law

Article by: Ryan S. Killian

2013 PEPP. L. REV. ONLINE 1 (2013)

Just after eleven o’clock in the morning on October 29, 2012—a rainy Monday in D.C.—the Supreme Court heard oral argument in Kirtsaeng v. John Wiley & Sons, Inc. The case raised important questions of copyright law, and discussions of statutory interpretation and policy took center stage. Justice Elena Kagan, however, wanted to talk about whether a certain passage in a prior case, Quality King Distributors, Inc. v. L’anza Research International, Inc., was mere “ill-considered dicta” that should be ignored. Representing the petitioner, Joshua Rosenkranz hesitated only a few seconds before answering: “To put it bluntly, yes,” he said. “That’s my ultimate position.” In Kirtsaeng, the importance of distinguishing between dicta and holding was clear. If the passage were treated as a holding, Kirtsaeng had already lost the case. If dicta, the question remained open. Below, even the Second Circuit panel that ruled against Kirtsaeng had described the Quality King passage as dicta. Nonetheless, arguing for the respondent, former solicitor general Ted Olson would not let such a stark path to victory go untried. In his opening remarks, he referenced the passage and argued that “referring to it as dicta misstates what was going on, on [sic] the Quality King case.” Only then was he interrupted, by an incredulous Justice Samuel Alito, asking if he truly wanted to argue that the passage was not dicta. Olson assured Justice Alito he did, prompting the justice to ask pointedly, “It was the holding of the case?” Olson responded that the passage was a holding inasmuch as the Court felt it “necessary” to include it. He then retreated slightly by claiming he did not want to spend much time arguing about the definition of dicta.

This Essay is about dicta. Like Olson, the Essay will not spend much time arguing about the definition of dicta. Rather, it analyzes rule of law issues as they pertain to dicta. Does the definition of dicta matter? Does reliance on dicta by subsequent courts raise rule of law concerns? The answer to both questions is yes.